Criminal Code of Canada - Root of discrimination

It is incredible that as we enter the 21st century, the child in the womb still does not have the status of human being and is denied personhood. In spite of all the technological and scientific advances such as ultrasound and intrauterine photography giving a clear picture of life before birth, our legal system holds fast to the absurdity that the baby in the womb is not a human being. Section 223 of the Criminal code of Canada entitled 'When child becomes a human being" states:

(1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state from the body of its mother whether or not (a) it has breathed (b) it has an independent circulation (c) the navel string is severed.

According to the criminal code, the baby becomes human only when it has fully emerged from its mother's body. Therefore, two months, two weeks, two seconds before birth, the preborn child is considered a non-human and receives no protection whatsoever under criminal law. While some abortion advocates do not deny the scientific evidence proving the humanity of the baby in the womb, they still cling to this piece of legal fiction to defend the right to abortion and maintain that abortion destroys the "products of conception" or a "potential person". Consequently, no one can be charged with homicide for committing an abortion when the victim is not considered human. In order to decriminalize abortion, it was necessary to have in place a state of legal affairs whereby abortion would be presented as not being a killing act or that there is no human being to be killed by the abortion procedure.

This is where section 223 provided the convenient definition as to the moment when a child is recognized under the law as a human being. However, the reality still remains that abortion is indeed the killing of a human being. Canada needs a new definition of human being which will restore personhood to the unborn child for it is now this personhood upon which legal rights depend. The crux of the matter is that the child in the womb is not considered a separate legal entity because "person" in the legal sense means a human being with recognized legal rights. Some claim granting rights to the unborn child diminishes the rights of women. True equality however consists in giving the same right to life to all members of society. Canada is guilty of discrimination when it refuses to accord personhood and protection to the child in the womb. Throughout history, the same arguments were used to deny personhood to some members of society, Blacks, Jews, women. Acknowledged only as biological entities, they were treated as a sub-class of humans, deprived of equal rights thus permitting others to exercise power and oppression over them. This refusal to grant personhood to the preborn child is echoed in the Dredd Scott decision concerning the slavery of Blacks in the United States. The decision stated that while slaves were human beings, they were not persons. They were classed as property to be used as the owner wished. During the time of the Third Reich, an entire group of people, Jews, were treated as an inferior species and the highest court in the land deprived them of their legal rights as persons.

Women were also the victims of discrimination by the courts and society. This discrimination and refusal to grant personhood was repeated yet again, in Canada in 1928. Canadian women were not considered persons for the purpose of eligibility to the Senate until the famous Persons case in 1929. A constitutional challenge was launched on behalf of five women: Nellie McClung, Henrietta Muir Edwards, Louise C. McKinney, Irene Parlby and Emily F. Murphy. While recognizing women as human beings, the Supreme Court of Canada declared that women were not persons within the meaning of the British North America Act of 1867. This decision was appealed and judgement was rendered on October, 18th, 1929 by the Privy Council in England affirming that women were indeed persons. Were women "persons" prior to this judgement? Of course, they were! Is the unborn child a person? Yes, he or she is a person. The decision of the Privy Council only marked the moment in history when women were granted legal recognition of their personhood in order to be appointed to the Senate.

No one in society must ever hold absolute power over another human being. As men do not have absolute power over women so women should not have absolute power over the child in the womb. We must uphold the principle of equal rights for all and restore personhood to the child in the womb. It is time to stop depriving the unborn child of the most fundamental right of all - the right to life.